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11 August 2016

Evergreening Copyright and the Lengthening of Copyright Terms

First draft.

Evergreening patents isn’t new, and it isn’t news: in essence, small changes are routinely made to the subject matter of patents to try to have the patents in question (through their supposedly novated form) last for longer, thus granting their owners a longer monopoly in the market. The practice of ‘evergreening’ in the intellectual property world isn’t restricted to patents though: it is also attempted in relation copyright through various mechanisms.

The ‘evergreening’ of copyrights, however, has not been spoken of quite as frequently as that of patents. For one thing, the term of copyright tends to be so long that attempts to circumvent the law to have the copyright in a work last for longer than it is intended to last are not made as frequently. And, for another, copyright terms tend to be obscure to those who are not familiar with them. Unlike in the case of patents, for example, there is no clear-cut, 20-year term beginning on a specific, easily ascertainable date with which one can easily determine whether or not a work is protected.

Indian copyright law (primarily expressed in the Indian Copyright Act, 1957) recognises various classes of works in which copyright may subsist: literary, dramatic, musical and artistic works; cinematograph films; and sound recordings. These broad categories are subject to a number of limitations: for example, for copyright to subsist in a literary work, it must be original while for copyright to subsist in a sound recording, it must be non-infringing itself. As such, just because a work falls into one of the broad categories in which it could potentially be protected by copyright, it does not automatically mean that it is protected by copyright. Further, in addition to statutory requirements, doctrine and case law provide indications of when a work is not copyrightable.

The basis of copyright law is the so-called idea-expression dichotomy which states, in essence, that although an idea cannot be copyrighted, its expression can be copyrighted. However, in cases where an idea can only be expressed in one way, or a very limited number of ways, the idea and expression may be considered to have ‘merged’ thus making the expression of the idea uncopyrightable. This is because allowing copyright to subsist in such cases would amount to copyrighting an idea. Complementing this understanding is what is known as the scènes à faire doctrine: although there is no merger involved in this latter doctrine, where an idea is extremely widely expressed in a particular way, the doctrine states that the expression of the idea in that way is not copyrightable.

None of this is clear-cut and determinations of copyrightability are subjective which makes the task of determining whether or not copyright subsists or has ever subsisted in a work that much more difficult. Assuming a work is copyrightable, copyright subsists in it from the moment of its creation. Who owns that copyright could be a matter of contention: ownership is determined through a mixture of copyright and contract law, and ownership is not always clear. The issue of ownership is, however, an issue that is distinct from the fact of the subsistence of copyright in certain works.

The Indian Copyright Act contains an entire chapter dealing with various terms of copyright, each one of those terms deals with published works. Reading into provisions elsewhere in the statute, it appears that the term of copyright in an unpublished work is indefinite: Section 3 which defines ‘publication’ states that, for the purposes of the Copyright Act, the word means making a work available to the public by issuing copies of it or by communicating it to the public. Following this, Section 4 immediately clarifies that ‘a work shall not be deemed to be published or performed in public, if published, or performed in public, without the licence of the owner of the copyright’ except in relation to infringement of copyright. In other words, the unauthorised publication of a work is irrelevant for purpose of determining when the term of copyright in a work begins.

As such, once one has determined that a work is copyrightable, Step 2 to determine the copyright status of the work requires one to find out if and when it has been legally published. If it has been legally published, Step 3 takes one to Chapter V of the Indian Copyright Act which spells out what the term of copyright is for different kinds of works. Although it’s often said that the term of copyright in India is ‘life plus sixty’, it is that only in a few instances such as in the case of a literary work whose author is known and which is legally published during the lifetime of the author. In the case of a literary work published posthumously and legally, the term of copyright begins not from the year of its author’s death but from the year of its publication. As such, even after sixty years of an author’s death, it cannot simply be assumed that all of his literary works are in the public domain.

It is also worth noting that having a work be in the public domain is a result not just of the work not being copyrightable in the first place or having its statutory copyright term expire but also, possibly, of having its copyright be relinquished in a manner which allows it to enter the public domain. Given the number of ways in which a work may fail to be protected by copyright, determining if a work is in fact in the public domain is no easy matter.

When it comes to works which are rare and which have market value, the task becomes even more difficult. Copyright is not just a single right in a single work but a bundle of rights in what may be a composite work. For example, a completed work may have other works embedded in or incorporated into it, and situations where the rights in underlying works restrict the publication of the completed work even after the copyright term in the latter has expired could well arise. Copyright law recognises this, and the Indian Copyright Act attempts to address the issue in a limited fashion: Section 52(1)(y) states that, subject to certain requirements being fulfilled, the exhibition of a cinematograph film whose copyright term has expired would not amount to the infringement of the literary, dramatic, musical, or artistic works recorded or reproduced in it. The law, however, does not address all the situations in which the structure of so-called underlying rights could create impediments to the publication of composite works in which copyright has expired.

Composite works aside, it is also possible to create what could be called ‘hybrid works’ in which a work, possibly in the public domain, is clubbed or has embedded into it new works in what could conceivably be an attempt to take a public domain work out of that domain, and make it a proprietary work. Further, a public domain work may be significantly edited, and in such cases, it may be possible to claim that the edited work is a new work in which a new copyright subsists. In the case of such hybrid works, the public domain core of the work, regardless of claims which may be made, remains in the public domain. Separating the public domain core from the amalgam which is created may be no easy matter though.

The issue of determining whether or not specific content belongs to the public domain becomes particularly difficult if the work is not easily available. In fact, hybrid works aside, it may be possible for the owner of a photograph of a public domain work such as a manuscript centuries old to attempt to claim copyright over the photograph, and to attempt to charge licence fees for the use of the photograph. Whether or not doing so is legitimate is not always entirely clear: attempting to test the legitimacy of the practice in a court would likely cost more than simply paying the solicited licence fees. Also, the copyrightability of such a photograph would likely differ depending on the nature of the work: it is far more likely that a photograph of a sculpture would be copyrightable than a photograph of a painting which slavishly reproduced it.

Apart from this, a work which is in the public domain as far as copyright is concerned could be simply ‘transferred’ to be protected by another form of intellectual property. For example, the illustrations in a manuscript could potentially be trade-marked, possibly sometime towards the end of their copyright term, and then conceivably be protected ad infinitum through trade mark law (provided they met the criteria of ‘trademarkability’).

In all of these cases, it would be possible, for all practical purposes, to potentially lengthen the term for which a work could be protected by intellectual property laws even if the means used to do so were legally challengeable. And the result is that it is sometimes extremely difficult to determine what the status of a specific work is (in terms of its being legally protected) especially given the degree of subjectivity which may be involved in making that determination. The law may not concern itself with trifles, as they say, but what a court would consider a trifle or a trifling modification to or use of a work is not always easy for anyone else to predict.

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